New Jersey Appellate Division Upholds Rejection of Low Bids Due to Stale DPMC Forms and Bid Bond Defects

Contractors bidding on public projects in New Jersey should take careful note of a recent Appellate decision highlighting the importance of submitting complete and up-to-date bid documentation. In ML Inc., et al. v. Edison Township Board of Education and Vanas Construction Co., decided on November 18, 2025, the New Jersey Appellate Division upheld the Edison Township Board of Education’s (the “Board”) decision to reject the two lowest bids for a construction project because of defects in their bid submissions. The ruling serves as a reminder that even seemingly minor documentation issues can render a bid materially defective.

The dispute arose from a public bidding process conducted by the Board for an addition to James Madison Intermediate School (the “Project”). Three companies submitted bids for the project: ML, Inc. (“ML”), Benard Associates, Inc. (“Benard”), and Vanas Construction Company (“Vanas”). Benard’s bid was the lowest numerical bid followed by ML. Vanas’s bid was approximately $655,000 more than Benard’s bid.

Following the bid opening, Vanas submitted a formal protest letter to the Board identifying non-waivable defects in the bids submitted by ML and Benard. Specifically, Vanas argued ML’s electrical subcontractor DPMC Form 701 (the “DPMC form”) was dated nearly six months before the bid opening in June. Vanas argued Benard’s bid bond and consent of surety were dated May 13, 2025, rather than the proper bid opening date, and the DPMC form was dated approximately one month before the bid opening. After reviewing the protest, the Board rejected the bids submitted by ML and Benard as materially defective and awarded the contract to Vanas as the lowest responsible bidder.

ML and Benard filed suit seeking to block the project and overturn the award. They argued the Board acted arbitrarily, capriciously, and unreasonably by rejecting their lower bids while accepting Vanas’s higher bid. They also pointed out that some of Vanas’s subcontractor DPMC forms were dated several days prior to the bid opening.

The trial court denied ML’s and Benard’s request for a preliminary injunction. It concluded the Board acted within its discretion in rejecting ML’s bid due to the stale DPMC form of ML’s subcontractor and determining that the Board was within its discretion to reject Benard’s bid bond and consent of surety as a non-waivable defect. ML then filed an emergent application with the Appellate Division, and Benard filed a cross-appeal.

Following briefing and oral argument, the Appellate Division affirmed the award of the Project to Vanas. The Appellate Division found that the Board reasonably rejected ML’s bid as materially defective because of the staleness of the information submitted in the bid, specifically the DPMC form.

The Appellate Division focused on the purpose of the DPMC form, which was developed by the New Jersey Department of Treasury, and requires each bidder to provide current information about the outstanding work of the bidder and its subcontractors. The Appellate Division noted under N.J.A.C. 17:19-2.13, a bidder must ensure that accepting a new state contract will not cause it to exceed its aggregate rating limit when the new project is added to its existing backlog. Accurate and current information is therefore critical for public entities to evaluate a contractor’s capacity to perform the work.

The Appellate Division noted it was reasonable for the Board to conclude that the gap of five months of the date of ML’s electrical subcontractors DPMC form, dated December 2024, and the bid opening date in June 2025, gave the Board sufficient grounds to reject the bid of ML. The date of the DPMC form did not provide accurate and current information to the Board at the time of bid opening that ML and its subcontractors were not over-committed to other work that could have made it infeasible to perform the Project. The Appellate Division held that this gap provided sufficient grounds to reject ML’s bid as materially defective. The Appellate Division did not determine if Benard’s 35 day old DPMC form was stale.

The Appellate Division also upheld the Board’s rejection of Benard’s bid based on the timing of its bid bond and consent of surety. These documents were executed more than a month before the bid opening and, importantly, before the Board issued an addendum that materially altered the scope of work.

The Appellate Division noted that the date of Benard’s bid bond created a risk that Benard might do something that negatively affected the bid bond’s enforceability in between the time that the bid bond and consent of surety were dated and the date of the submission of the bid. Finally, the difference in over one month was material because, during the month period, the Board issued an Addendum, which materially altered the scope of work. A surety might have been willing to bond the original project but may have declined to do so after the addendum’s changes. Because of this uncertainty, the Appellate Division agreed the Board reasonably treated the defect as material and non-waivable.

The decision underscores a fundamental rule in public bidding: documentation must be both complete and current at the time bids are submitted. Even small administrative details, such as the date on a form or bid bond, can determine whether a bid is accepted or rejected. Public owners are granted considerable discretion when evaluating bids, and courts are generally reluctant to overturn those decisions when the record shows a reasonable basis for rejecting a bid. As this case demonstrates, the lowest price alone does not guarantee success. In the world of public contracting, accurate and timely documentation is just as critical as competitive pricing.